GE v R

1. [1]

   SIMPSON AJA: I agree with Fullerton J.

2. [2]

   FULLERTON J: On 19 July 2016 the applicant entered pleas of not guilty to an indictment containing ten counts (Counts 4 and 5 being cast in the alternative), each of which alleged sexual misconduct against CE, his adopted daughter.

3. [3]

   The trial on that indictment was convened before Norton DCJ and a jury.

4. [4]

   On 1 August 2016 the jury returned verdicts of not guilty in respect of Counts 2, 4 and 6 on the indictment. Count 2 charged an aggravated sexual intercourse with a child under 10 years, and Count 4 an aggravated sexual intercourse with a child between the age of 10 and 14 years. Count 2 involved an allegation of oral intercourse while Count 4 involved an allegation of anal intercourse. Count 6 charged an act of incitement of a child under the age of 16 to commit an act of indecency.

5. [5]

   On 2 August 2016 the jury returned verdicts of guilty in respect of Counts 7 and 9 on the indictment. Count 7 charged an aggravated intercourse with a child over the age of 10 years and under the age of 14 years, involving oral intercourse, contrary to s 66C(2) of the Crimes Act 1900 (NSW). Count 9 charged an aggravated indecent assault with a child under the age of 16 years, involving a squeezing of CE’s buttocks, contrary to s 61M(2) of the Crimes Act.

6. [6]

   On 2 August 2016 the jury also returned verdicts of not guilty in respect of two further counts: one count of aggravated sexual intercourse with a child between the ages of 10 and 14 years (Count 8) and a further count of aggravated indecent assault of a child under 16 years (Count 10).

7. [7]

   On 5 August 2016 the jury informed the trial judge that they were unable to reach verdicts in respect of the balance of the counts on the indictment, being Counts 1, 3 and 5. Counts 1 and 3 alleged two further acts of oral intercourse with CE charged as acts of aggravated sexual intercourse, whilst Count 5 (laid in the alternative to Count 4) alleged an aggravated indecent assault.

8. [8]

   On 25 August 2016 the Director of Public Prosecutions directed that there be no further proceedings in respect of Counts 1, 3 and 4/5.

9. [9]

   On 9 December 2016, against maximum penalties of 20 years imprisonment and 10 years imprisonment with a standard non-parole period of 8 years for Counts 7 and 9 respectively, an effective sentence of 5 years and 3 months imprisonment with a non-parole period of 3 years and 8 months was imposed. The non-parole period expires on 23 April 2020. The sentence expires on 23 November 2021.

10. [10]

    On 1 February 2018 the applicant filed a notice of appeal against conviction. He does not seek leave to appeal the sentence.

11. [11]

    The appeal was filed out of time. A notice of intention to appeal was filed on 21 December 2016 and extended to 15 December 2017. Amended grounds of appeal were filed on 23 February 2018. The applicant requires a grant of leave to permit the appeal to be brought out of time. The Crown did not oppose leave being granted.

12. [12]

    The applicant relies upon a single ground of appeal:

13. [13]

    It is accepted that there was no complaint as to the adequacy of her Honour’s directions at trial. Accordingly, r 4 of the Criminal Appeal Rules (NSW) applies.

14. [14]

    In counsel’s written submissions, it was submitted that leave under r 4 should be granted on the basis that the failure to adequately direct the jury as to the use they might make of the evidence of the applicant’s general admissions of sexual conduct (were they to find that the admissions were made) would inevitably have engaged them in tendency reasoning, carrying with it a risk that they would use that reasoning process in returning verdicts of guilty on the two counts which they were satisfied were proved beyond reasonable doubt.

15. [15]

    The applicant further submitted that leaving the evidence of the alleged general admissions for the jury’s consideration, without adequate guidance as to the legitimate use to which they might put that evidence in proof of the applicant’s guilt, has undermined the integrity of the jury's verdict on Counts 7 and 9 and that leave under r 4 ought be granted to permit him to establish that a substantial miscarriage of justice has occurred as a result.

16. [16]

    The Crown opposed leave being granted.

The evidence at trial

1. [17]

   Given the narrow scope of what is said to be an error in the trial judge’s directions, coupled with the fact that the jury returned verdicts on only two of ten counts on the indictment, the facts can be shortly stated.

2. [18]

   The applicant married the complainant's mother (TE) in South Africa in 2007 and adopted the complainant in 2008. The applicant and TE are also the parents of two other daughters, one of whom was born in South Africa with the younger child born in Australia. The family migrated to Australia in June 2010.

3. [19]

   Between June 2010 and February 2014 the applicant, his wife and children (including CE as his then adopted daughter) lived in both North Rocks and Castle Hill. All offences are alleged to have occurred in one of three family homes in those two suburbs.

4. [20]

   The first of the two counts which attracted a guilty verdict (being the charge of aggravated sexual intercourse with a child over the age of 10 and under the age of 14 years, charged as Count 7 on the indictment) occurred when CE was aged between 10 and 12 years. She gave evidence that on 3 February 2012, whilst she was living at the family home in XX Place, Castle Hill, the applicant entered her bedroom when she was in bed reading a book, removed his penis from his pants, placed his hand on the back of her head and forced her to fellate him.

5. [21]

   That offence was the fifth of six counts of aggravated sexual intercourse which were ordered on the indictment from the first to last in time. Four counts involved oral intercourse (Counts 1, 2, 3 and 7), a fifth anal intercourse (Count 4) and a sixth cunnilingus (Count 8). I have already noted that the jury acquitted the applicant of Counts 2, 4 and 8 and did not return verdicts on Counts 1 and 3.

The first complaint

1. [22]

   CE gave evidence that the day after the sexual assault the subject of Count 7 she told her mother what had occurred the previous night. She did not tell her mother about the earlier act of anal intercourse (the subject of Count 4) or that the applicant had oral intercourse with her on three previous occasions (the subject of Counts 1, 2 and 3).

2. [23]

   TE gave evidence that CE told her on that occasion that the applicant had touched her breasts and vagina and that it had occurred two or three times earlier.

The second complaint

1. [24]

   TE gave evidence that two or three months after CE’s first disclosure of the applicant’s sexual misconduct (that is, before the family moved to the second of the two family homes in Castle Hill and before the conduct charged as Counts 8, 9 and 10) CE told her about an incident where the applicant had forced her to have oral intercourse. TE gave evidence that CE did not complain to her at that time of multiple acts of oral intercourse or of anal intercourse.

2. [25]

   The second of the two counts which attracted a guilty verdict (being Count 9) occurred at Castle Hill but in the lounge room of the family home. CE gave evidence that after she had hugged her mother good night and while her mother was in the kitchen, the applicant squeezed her buttocks through her clothes. She said she thought her mother saw what had happened but that once she was in her bedroom she told her mother what the applicant had done. CE said her mother “started freaking out about it” but, because she was concerned that the applicant would get into a lot of trouble and, if her parents separated the family would suffer financial hardship, she told her mother not to say anything to him.

TE confronts the applicant

1. [26]

   TE gave evidence that after CE’s first complaint of sexual mistreatment (that is, after the assault which became the subject of Count 7) she confronted the applicant. The Crown relied upon what the applicant said and did in response to being confronted as evidence of a general admission by him of sexual misconduct towards CE. The Crown did not rely upon the evidence as tendency evidence. This was referred to in the trial as “the first admission”.

2. [27]

   The Crown also relied upon TE’s evidence of other admissions she said the applicant made to her for the same purpose. Those admissions were comprised of a further occasion when she confronted the applicant after CE had complained to TE of his continued sexual mistreatment of her (“the second admission”) and in a series of text messages the applicant sent to TE after she had moved to New Zealand with the children (“the third admission”).

3. [28]

   Before the trial commenced the applicant objected to the admissibility of some aspects of TE’s evidence. The trial judge excluded that evidence after which agreement was reached between the parties as to the basis upon which her evidence would be led as evidence in the Crown case. Importantly, there was no objection to the evidence of what came to be referred to as “the three admissions” by the applicant nor was an application made to limit the use to which that evidence might be put by the jury.

The first admission

1. [29]

   TE gave the following evidence of the first admission:

2. [30]

   She then explained further:

The second admission

1. [31]

   TE described the second admission in the following terms:

The third admission

1. [32]

   The third admission was in a text message sent by the applicant, after TE had moved to New Zealand with her children:

2. [33]

   TE explained the meaning of the messages:

3. [34]

   The applicant gave evidence denying that the conversations the subject of the first and second admissions had taken place, and explained what he meant by the text message. He gave the following evidence:

4. [35]

   The significance of this body of evidence, from the Crown’s perspective, was encapsulated in the Crown prosecutor’s closing address:

5. [36]

   In defence counsel's closing address the jury were urged to reject TE’s evidence as untrue and, so far as the text messages were concerned, to accept the reasonable possibility that the applicant was talking about generalised bad behaviour in the marriage when referring repeatedly to “it” having occurred at various times, but not to sexual misconduct of any kind.

The summing up

1. [37]

   The trial judge summarised the evidence of the admissions and the submissions of counsel concerning it, after which she directed the jury in the following terms:

2. [38]

   Her Honour continued:

The appeal

1. [39]

   In the written submissions filed by the applicant’s counsel it was contended that the evidence of the admissions, so described, could only have been properly admissible either as tendency evidence or as context evidence, and that the trial judge's directions as to how the jury should approach their consideration of that evidence were inadequate for that reason.

2. [40]

   At the hearing of the appeal that argument was effectively abandoned, as was the submission that her Honour’s direction to the jury that they must not apply tendency reasoning was deficient.

3. [41]

   The applicant's reformulated case advanced on the hearing of the appeal appears to be in response to the Crown’s filed submissions and its reliance upon ARS v R [2011] NSWCCA 266 where, at [80]-[87], Bathurst CJ (Hidden and Johnson JJ agreeing) confirmed the correctness of the approach of Giles JA in Rolfe v R [2007] NSWCCA 155; 173 A Crim R 168 where, at [62]-[69], his Honour considered the basis upon which an accused’s general admissions to having engaged in sexual conduct or sexual activities with a complainant might be relied upon by the Crown in proof of guilt.

4. [42]

   At [66]-[67] Giles JA made the following observations:

5. [43]

   In ARS, as with the present case, the Crown adduced evidence of general admissions by the accused of having sexual contact with his stepdaughter, not as tendency evidence, but as a general admission capable of supporting the occurrence of the conduct charged in the indictment without it being capable of establishing the accused’s guilt on any particular count. In ARS the trial judge directed the jury that were they to find that what the accused was recorded as having said to his stepdaughter amounted to a general admission by him of sexual conduct towards her, even if it did not refer to any particular episode, “… that evidence of admission could properly support the occurrence of the conduct charged and described in the indictment”.

6. [44]

   At [83]-[86], Bathurst CJ said of that approach as follows:

7. [45]

   In the Crown's submission, her Honour's directions to the jury were entirely concordant with that approach.

8. [46]

   In oral argument, the applicant’s counsel accepted that ARS is authority for the proposition that TE’s evidence of what the applicant said to her was admissible as a general admission by him that he had misconducted himself towards CE. He maintained the submission, however, that the trial judge’s direction as to how the jury might use that evidence was deficient because they were not directed that before they could use any of his admissions in support of guilt they would need to be satisfied that they “related to or at least encompassed the charged conduct”. Counsel submitted that the comments of Giles JA at [67] in Rolfe, and this Court's endorsement of the correctness of that approach in ARS, necessitated that the trial judge give a direction to that effect and that without it the direction that was given was flawed. It was not submitted that her Honour’s directions were deficient in any other respect.

9. [47]

   In the course of oral argument, and using the trial judge's directions as a template, the applicant's counsel proposed a reformulated direction in the following terms:

10. [48]

    No redirection of that kind, or redirections of any kind, were sought by trial counsel.

11. [49]

    In Dent v R [2017] NSWCCA 166, at [113], Hoeben CJ at CL referred to the judgment of Basten JA (with whom Button and N Adams JJ agreed) in Greenhalgh v R [2017] NSWCCA 94 where, in relation to r 4, his Honour said at [14]:

12. [50]

    I am not persuaded that there is merit in the reformulated argument advanced at the hearing of the appeal in support of the sole ground of appeal relied upon by the applicant. I do not regard the trial judge’s directions as deficient in any relevant respect or that the reformulated direction proposed by the applicant’s counsel was warranted. The direction that was given was sufficient to guide the jury as to the use they could properly make of the admissions to support the occurrence of the conduct charged in the indictment.

13. [51]

    There is no basis for a grant of leave under r 4 unless this Court is satisfied that there is an arguable case that the trial judge has made an error of law or the Court is otherwise satisfied that the conviction is productive of a miscarriage of justice. I am not satisfied that leave under r 4 should be granted on either basis.

14. [52]

    I would refuse leave and dismiss the appeal.

15. [53]

    McCALLUM J: I agree with Fullerton J, for the reasons her Honour has stated and for the following additional reasons.

16. [54]

    The decision in Rolfe at [66] holds that an admission of uncharged sexual conduct might be admissible “for the same reasons as” a complainant’s (or presumably another witness’s) evidence of uncharged sexual conduct. Justice Giles noted that such evidence will “ordinarily” be of sexual conduct on particular occasions (necessarily other than those on the indictment). However, the judgment does not exclude the proposition that a general admission of uncharged conduct might be admissible for the same reasons, that is, either as tendency evidence or as context evidence, subject always to the constraints relating to those kinds of evidence. In the case of allegations of sexual offending by a family member, a general admission of sexual conduct might well have significant probative value when admitted for either of those reasons.

17. [55]

    The decision in Rolfe further holds at [67] that a general admission might also be admissible as an admission of the charged conduct if, taken with the other evidence, it is capable of “relating to or at least encompassing” the charged conduct and supporting a finding that the charged conduct occurred.

18. [56]

    The evidence admitted (without objection) in the present case was not confined to the second category. As noted in the Crown’s written submissions, the first and third alleged admissions were general admissions which did not refer to any particular act, charged or uncharged. However, the second alleged admission referred to three specific acts, only one of which was capable of referring to a count on the indictment (count 8, of which the applicant was acquitted). It follows that the relevance of the evidence was not confined in the manner assumed by the additional direction the applicant contends should have been given. The two general admissions were admissible on the basis recognised in Rolfe at [67], namely, that when taken with other evidence the jury could regard them as relating to or at least encompassing the charged sexual conduct. The judge’s direction in that respect was entirely in accordance with the decision of this court in ARS (indeed, the judge adopted the precise words of that decision). The specific admission was admissible on the basis recognised in Rolfe at [66]. The judge’s “anti-tendency” direction (to adopt the term used by the Chief Justice in ARS) obviated the risk of misuse of that evidence.

19. [57]

    For those reasons, I agree with the orders proposed by Fullerton J.